In April 2019, South Africa’s Supreme Court of Appeal ruled that private residential estates are legally entitled to enforce the rules of such estate against its residents as members of the estate homeowners’ association, including those rules relating to speed limits on the roads within the estate.
This ruling effectively overturned a previous judgment by the High Court in KwaZulu Natal in which it was held that the roads within private estates fell within the definition of “public roads” in terms of the National Road Traffic Act (NRTA).
“When one chooses to purchase property in such a private estate and become a member of its homeowners’ association, one voluntarily agrees to be bound by its rules,” said Muhammad Ziyaad Gattoo and Melissa Peneda of law firm Cliffe Dekker Hofmeyr.
The attorneys noted that that relationship between the homeowners’ association and its members is therefore a contractual one and the control of the speed limit within the estate falls squarely within the provisions of that contract concluded between the homeowners’ association and its members.
“The rules are also only enforceable between the contracting parties themselves and not against the general public.
“The court therefore expressly refused to sustain the High Court’s ruling that the association was usurping the functions reserved exclusively for the authorities under the NRTA.”
Be familiar with your rules
Cliffe Dekker Hofmeyr said that the court further emphasised that a private estate ordaining a lower speed limit than that which is prescribed by national legislation on public roads does not go beyond promoting, advancing and protecting the interests of the homeowners in the estate, particularly given the presence of children, pedestrians and animals on the roads – the enforcement of such rules could hardly be seen as objectionable in the opinion of the court.
“Should you reside in such a private residential estate, as is the case with approximately one out of every ten South Africans, the above supreme court judgment leads us to consider the importance of becoming familiar with the rules and constitutional documents of the homeowners’ associations we may belong to,” it said.
“Such homeowners’ associations are legally entitled to enforce these rules and financial sanctions against property owners residing in those private estates.”